Registrar´s Office: Sexual Apartheid goes Strasbourg

The Austrian Constitutional Court last October has affirmed the exclusion of same-sex couples from the civil registry offices where civil marriages are performed. Deportation ofr same-sex couples to the regional administrative offices would fall into the legislator´s margin of appreciation. Rechtskomitee LAMBDA (RKL), Austria’s LGBT civil rights organisation, expressed shock about the Constitutional Court having violated its own case-law and last week took the case to the European Court of Human Rights.

RKL-Secretary General Walter Dietz and his partner Boontawee Suttasom are living in Vienna and have been a couple for over 17 years. Manfred Hörmann and Felix Moser have been a couple for many years and are jointly running a farm in Stallhofen in Styria. Both couples had applied for performing civil marriage at the civil registry office. In case this being refused they applied for performing registered partnership at the civil registry office.

Their applications have been rejected and the case went up to the Constitutional Court, which now has dismissed the case (VfGH 9 October 2012, B 121/11, B 137/11).

Not only the prohibition of marriage but also the deportation of same-sex couples from the registrar´s office to the regional administrative offices, normally competent for the issuance of driving licences, industrial licences, residence permits and similar unromantic affairs would fall into the legislator´s margin of appreciation.

Austrian Anomaly

In respect of the marriage ban the Constitutional Court cited its reasoning from 2003 that opposite-sex couples would be basically oriented towards parenthood, despite the fact that not only Austrian legislation but also the catholic church ever since have admitted marriages of women after climacterium, marriages on the deathbed and marriages where both partners agree to abstain from sex (“mariage blanc”); all marriages which are not “basically oriented towards parenthood”.

The banning of same-sex couples from the civil registry office and their deportation to other offices traditionally not entrusted with civil status affairs is an Austrian and German anomaly. Apart from Austria only some German states had engaged in such discrimination. All of them have already repealed this blatant form of sexual racism.

Segregation of same-sex and opposite-couples in performing their formal partnership (marriage, registered partnership) had been one of the conservative party´s (ÖVP) prime conditions for voting in favour of the law on registered partnership. Back then today´s chairman of the conservative party and Austria´s vice-chancellor and foreign minister, Michael Spindelegger, stood out calling for heterosexual couples to be protected from being confronted with same-sex couples when marrying at the civil registry office. Just as back in racial apartheid when white people had been protected against sharing a bus or a restaurant with black people …

Constitutional Court at odds with its own case-law

In its law-of-names-judgments (judg. 22 September 2011, B 518/11, par. 23; judg. 3 March 2012, B 518/11, par. 18) and again recently in its ceremony-judgment (12 December 2012, B 125/11, B 138/11) the Constitutional Court held it to be prohibited discrimination when the only purpose of a distinction between hetero- and homosexual couples is segregation between the two groups (“qua principle”); distinctions must be necessary for particularly serious reasons the Court said. In sharp contrast the same Court in the current civil-registry-office-judgment confirms exactly such a blatant end-in-itself segregation (“qua principle”). The judges approved not only the prohibition of marriage but even the banning of same-sex couples from the civil registry office and their deportation to another, prosaic and unembellished office.

Rechtskomitee LAMBDA (RKL), Austria’s LGBT civil rights organisation, deplores that the judges, called to be the watchdogs of human rights, did affirm not only segregation into a homosexual ghetto (registered partnership) on the one hand and a heterosexual ghetto (civil marriage) on the other, but confirmed even blatant sexual apartheid by banning same-sex couples from the civil registry office and deportating them to another, prosaic and unembellished office.

„We are shocked that the judges have confirmed this sexual apartheid unique worldwide“, says Dr. Helmut Graupner, president of Austria’s LGBT civil rights organisation Rechtskomitee LAMBDA (RKL) and counsel of the applicants, “with the same reasoning of margin of appreciation which it applied 1989 when having affirmed infamous anti-homosexual Art. 209 of the Criminal Code which later has been found by the European Court of Human Rights a serious violation of human rights”. “As back these days only the hope for the European Court of Human Rights remains”.

Rechtskomitee LAMBDA (RKL), founded in 1991, on a supra-partisan and denominational level is working for the implementation of human rights for homo- and bisexual men and women. In its honorary board it convenes as prominent members as former Prime Minister Dr. Alfred Gusenbauer, President of Federal Parliament Mag. Barbara Prammer, former Minister of Justice Mag. Karin Gastinger, the Honorary President of the Parliamentary Assembly of the Council of Europe Peter Schieder, Federal Ombudsman Mag. Terezija Stoisits, Senator Marco Schreuder, former Director of Public Security Dr. Erik Buxbaum, the former President of National Judges Association Dr. Barbara Helige, the Chairwoman of the National Judges Association’s Working Party on Fundamental Rights Dr. Mia Wittmann-Tiwald, the Vice-President of the Vienna Bar-Association Dr. Elisabeth Rech, the former President of D.A.S.-legal expenses insurance company Dr. Franz Kronsteiner, the President of Weisser Ring Dr. Udo Jesionek, the Secretary General of Amnesty International Austria Mag. Heinz Patzelt, the Vice-Chairperson of the Executive Board of the European Union Agency for Fundamental Rights Univ.-Prof. Dr. Hannes Tretter, and the well-known human-rights experts Dr. Lilian Hofmeister and Univ.-Prof. Dr. Manfred Nowak, the constitutional law professors Univ.-Prof. Dr. Christian Brünner, Univ-Prof. Dr. Bernd-Christian Funk, Univ.-Prof. Dr. Heinz Mayer and Univ.-Prof. Dr. Ewald Wiederin, famous child- and adolescent psychiatrist Univ.-Prof. Dr. Max Friedrich and the Vienna Child- and Youth-Ombudspersons DSA Monika Pinterits and Dr. Anton Schmid, sexologists Univ.-Prof. Dr. Josef Christian Aigner, Univ.-Prof. Dr. Rotraud Perner and Univ.-Lekt. Mag. Johannes Wahala, Life-Ball-Organisor Gery Keszler and many more. October 2nd, 2006, RKL’s 15 years anniversary has been celebrated in historic Ceremonial Act “Against Sexual Apartheid” in the lower chamber of Austrian federal parliament. This first honouring of an lgbt organisation in the plenary session hall of a national parliament worldwide took place in attendance of over 500 guests including highest representatives from the judiciary, administration and politics (http://www.rklambda.at/festakt/index.htm). Since 2010 RKL is a member of the Fundamental Rights Platform of the European Union Agency for Fundamental Rights (www.fra.europa.eu).